For most nurses, even the idea or possibility of being disciplined by the College of Nurses of Ontario (CNO) will cause grave anxiety. What if it happens to you? Mistakes can happen when you are human and a nurse.

Each year, the CNO’s Discipline Committee hears about nurses’ conduct and competence following mishaps or poor judgment calls. Its decisions can have a significant impact on a nurse’s future ability to practice nursing.

This article answers some frequently asked questions about the CNO’s discipline process and discusses some of the valuable insights recently shared by the current Chair of the CNO’s Discipline Committee, Terry Holland, RPN, during a panel discussion hosted by the Health Law Section of the Ontario Bar Association (OBA) entitled “Effective Advocacy before Health Discipline Panels”. Her insights are relevant to Ontario nurses, including registered nurses (RN), registered practical nurses (RPN), and nurse practitioners (NP).

What is the Discipline Committee?

The Discipline Committee is a statutory committee of the CNO that hears cases referred to it by the Inquiries, Complaints and Reports Committee (ICRC). It holds hearings and decides whether a nurse has engaged in professional misconduct or is incompetent.

What Rules apply to the CNO Discipline Process?

The Discipline Committee’s composition and proceedings are governed by the Regulated Health Professions Act (RHPA), the Health Professions Procedural Code, which is a part of the RHPA, and the CNO Discipline Committee Rules.

The Discipline Committee’s proceedings are also subject to the Statutory Powers Procedures Act, common law rules on procedural fairness, human rights laws, the Canadian Charter of Rights and Freedoms, and statutory and common law rules of evidence.

When considering the conduct or competence of a nurse, the Discipline Committee will have regard to the professional misconduct regulation legal requirements and standards of the profession, including those contained in the Nursing Act and its regulations, CNO Code of Conduct and practice standards, and any applicable regulations promulgated under the RHPA, such as the regulation on Controlled Acts. According to Ms. Holland, the CNO’s Code of Conduct, which is relatively new, is often looked at by a panel in considering a case as it is about attitudes and how a nurse approaches their patient care.

Who are the decision-makers?

The Discipline Committee consists of a Chair and a roster of members, who are currently appointed by the CNO’s Council in accordance with the CNO’s by-laws. A list of current members of the Discipline Committee is available on the CNO’s website.

There is a legal requirement that a Discipline Committee panel must include at least three (3) individuals. Typically, the Chair of the Discipline Committee will select a panel of five (5) members of the Committee to hold a hearing into allegations of professional misconduct that are referred to it, made up of three members who are nurses and two members of the public who are not members of the nursing profession.

How does a nurse end up before the Discipline Committee?

Concerns about nurse’s professional conduct or competence usually come to CNO in the form of a complaint or a report made by an employer.

The concerns are first investigated and reviewed by the ICRC, which is a separate statutory committee. A panel of the ICRC decides whether or not a specific allegation about a nurse should be referred to the Discipline Committee for a hearing. The ICRC is the only body that can refer a nurse to discipline. For a more detailed discussion on the ICRC’s role and process, click here.

Once the ICRC refers one or more specified allegations about a nurse’s conduct or competence to the CNO’s Discipline Committee, a panel will be selected to hold a hearing. The Discipline Committee’s process is then formally started with a “Notice of Hearing”, and the nurse who is subject of the referral must receive a copy of that notice.

Is it more likely that a complaint or employer report will be referred to Discipline?

The level of seriousness of the alleged conduct and the information gathered during the ICRC investigation will be the most significant factors in determining whether a matter is referred to the Discipline Committee. How the information comes to the CNO is less important. According to Ms. Holland, both avenues (complaints and reports) are looked at fairly similarly for matters that come before the Discipline Committee for professional misconduct or incompetence.

What conduct and issues will the Discipline Committee hear about?

A question I frequently get from my nurse clients is: will the CNO look at everything I have ever done as a nurse? The short answer is: No. A referral to the Discipline Committee must include “specified allegations” that include a description of the conduct referred. The scope of a discipline hearing is confined to these specified allegations. This means that the Discipline Committee cannot look at everything the nurse has ever done. Instead, the Committee must focus on the specific conduct of the nurse that is called into question as outlined in the Notice of Hearing.

What types of cases typically come before the Discipline Committee?

Ms. Holland explained that most often the cases that come before the Discipline Committee involve a breach of the standards of the nursing profession and usually relate to issues of clinical care, errors in practice, communication with patients and families, failure to keep records, misappropriation (such as time billed for care that was not provided), errors relating to medications and narcotics, and boundaries issues that can be related to sexual abuse.

Another topic that is becoming more common is confidentiality and privacy. Ms. Holland explained with electronic health records the CNO has seen an influx of cases involving breaches of privacy and confidentiality. She noted that while the CNO does see cases of incompetence coming before the Discipline Committee, this is not that common.

Can discipline cases be resolved on consent?

Many discipline cases are resolved on a consent basis. This means that the College and the nurse will have come up with an agreement about how to resolve the case before the discipline hearing. This may occur before or at a pre-hearing conference.

To resolve a matter on a consent basis, the prosecution lawyer (who represents the interests of the College) and the nurse with the assistance of her or his lawyer negotiate and a resolution agreement, including an agreed statement of facts and a joint submission on penalty.

If a nurse is represented by a lawyer, they will explain the process in detail and provide advice to the nurse about the terms of any agreement that is being proposed by the College. The nurse will then decide whether to agree to the proposed terms or whether certain terms may be negotiated. If the nurse does not have a lawyer, it is important to understand that the College’s lawyer only represents the interests of the College and not the nurse.

Any agreement that is reached between the College and the nurse must still be approved by the Discipline Committee.

What’s a pre-hearing conference?

A pre-hearing conference is a meeting between a representative of the College, the College’s prosecution lawyer, the nurses, and her or his lawyer. The meeting is chaired by a member of the Discipline Committee. The intention of the pre-hearing conference is to allow the parties to narrow the issues for the hearing and to identify legal and procedural issues for the panel.

Ms. Holland emphasized the importance of the pre-hearing conference. When a nurse participates at a pre-hearing conference, she or he may be offered a candid opinion and explanation about what the panel of the Discipline Committee would think about the case at the hearing. She believes it is an effective mechanism to bring the sides together.

What happens at a Discipline Committee hearing?

A discipline hearing is a formal legal process that involves a presentation of evidence, oral and sometimes written legal submissions before a panel of the Discipline Committee.

If the nurse and the College have reached a resolution agreement in advance of the hearing, the agreement will be presented to the presiding panel along with an agreed statement of facts and joint submission on penalty. The Discipline Committee will hear submissions from both sides on the agreement and make a decision about whether to accept it.

If the nurse and the College do not agree on how the matter should be resolved (or only some of the issues can be resolved by an agreement), the discipline hearing will proceed on a contested basis. This means that the panel will hold a hearing that is very similar to a trial before the Courts. The panel will hear evidence about a nurse’s practice through witnesses’ testimony and documents that are presented to the panel. The nurse may be examined by her lawyer and cross-examined by the College’s prosecution lawyer. Other witnesses may be examined as well. Both the prosecution lawyer for the College and the nurse’s lawyer will present their legal arguments and submissions about why a finding of professional misconduct is or is not warranted. The panel may also receive legal advice from Independent Legal Counsel (ILC) to assist them with making a decision about legal and procedural issues.

After hearing the evidence and considering legal submissions, the discipline panel will make a decision about whether to dismiss the allegations in the Notice of Hearing or find that the nurse has committed professional misconduct or is incompetent. A hearing about the appropriate penalty usually happens at a later time, once the panel has made a decision about whether the nurse is guilty of professional misconduct or is incompetent.

What is the role of Independent Legal Counsel (ILC)?

The members of the discipline panel typically do not have legal training, although some public members of the Committee may be lawyers. To ensure the hearing proceeds in accordance with the legal standards that govern the hearing, the panel receives legal advice from Independent Legal Counsel (ILC). The ILC does not represent the interests of the CNO. Rather, its role to provide independent advice to the panel on legal questions that may arise.

Ms. Holland notes that ILC will typically give advice on the procedural issues, the interpretation of statutes (legislation), and the authority of the Discipline Committee, for example, if it’s a fitness to practice issue. If and when ILC provides legal advice to the panel, the College’s prosecution lawyer and the nurse’s lawyer will be given an opportunity to comment and make submissions on that advice. Submissions are typically done orally. Ms. Holland explained that the CNO very seldom receives written submissions from ILC.

What penalties can the Discipline Committee order?

Where a nurse has been found guilty of professional misconduct, the Discipline Committee can make a penalty order that may include:

• an oral reprimand
• revocation or suspension of a nurse’s certificate of registration (nursing license)
• restrictions or limitations on a nurse’s certificate of registration (meetings with regulatory expert, independent practice restriction, etc.)
• education and remedial activities
• the requirement to notify an employer about the committee’s decision
• employer audits of the nurse’s practice
• an order that the nurse pay the costs of the discipline hearing
• an order that the nurse pay a fine

How does the CNO support unrepresented nurses?

Some nurses decide to represent themselves during the discipline process. This often presents a challenge, not only for the nurse involved.

Neither the lawyer for the College nor the ILC will be in a position to provide any legal advice to the nurse during the discipline process or the hearing. While the members on the discipline panel may feel empathetic to the situation the nurse is in, the panel must remain neutral and it cannot give the nurse legal advice or represent her or his interests.

Ms. Holland explained that the CNO’s hearings team will often meet with an unrepresented nurse in advance of the hearing, to review the process and will help them understand how things are going to go. For example, the CNO has been using a program called Caselines for hearings, and the hearings team will provide technical support to an unrepresented nurse, so they are versed in how to access and view documents. This technical support, however, does not make-up for the lack of legal representation.

How has the shift to virtual hearings impacted discipline hearings?

Ms. Holland explained that the CNO has been very busy and the College’s experience with virtual hearing has been positive. She noted that the shift to virtual hearing has increased the number of cases the Discipline Committee is seeing and finds that doing things virtually has enabled the CNO to do hearings more efficiently.

From a defense lawyer’s perspective, virtual hearings can present a challenge in how the panel assesses witnesses’ credibility and how the evidence is presented. There is a hope that the panel is alive to challenges in assessing the demeanor of a witness during a virtual hearing is conducted on a platform like Zoom. There are certain cases, including those involving serious allegations of sexual abuse, where proceeding by way of a virtual hearing is far less than ideal. However, requests to delay contested discipline cases e until in-person hearings resume on the ground of prejudice may be denied. More on that topic is discussed in this article.

Ms. Holland finds that the Discipline Committee can quite effectively assess credibility at a virtual hearing. In her experience, most participants are now more comfortable on virtual platforms and virtual hearings are now is less intimidating than before the pandemic. She believes virtual hearings will be part of the process for a while yet.

For better or worse, virtual hearings are the reality of how discipline hearings are conducted at this time. Each case is unique. While in some cases, a virtual hearing may offer an efficient way to deal with allegations and allow a nurse to move on, in other circumstances there may be serious questions about whether the virtual hearing process would offer the procedural fairness a nurse is entitled to in this high-stakes process.

Carina Lentsch is an Ontario health lawyer and an advocate for nurses. She helps nurses navigate CNO investigations, fitness-to-practice, registration, and discipline matters.

Carina writes about legal issues affecting nurses and other health professionals. Her articles are not legal advice. If you need help with a situation you are facing, ,contact Carina directly for a consultation.

To learn more about Carina’s law practice, ,click here. You can subscribe to Carina’s newsletter and follow her on ,Facebook for updates @aclhealthlaw.